Who Regulates the Regulators in Indiana Judge and Lawyer Ethics Cases? Reform is Coming.

CJ Loretta Rush Needs to Resign

In American law, we pride ourselves on Who Regulates the Regulators? A Call to Reform Attorney Discipline a simple principle: it is better that a guilty person go free than an innocent person be wrongly punished. That principle reflects our commitment to due process, fairness, and the rule of law.

But there is one corner of our legal system where those protections are notably thinner: attorney discipline.

Across the country, lawyer discipline systems—typically overseen by state supreme courts such as the Indiana Supreme Court—operate as self-contained regulatory structures. These systems are designed to protect the public and maintain professional standards. That mission is essential. But the structure itself raises legitimate questions about fairness, independence, and accountability.

Unlike criminal defendants, lawyers facing discipline do not receive the full set of constitutional safeguards. There is no jury. The burden of proof is lower. There is no guaranteed right to appointed counsel. And once a state’s highest court renders a decision, there is often no meaningful appeal as of right. Review by the Supreme Court of the United States is discretionary and rarely granted.

This concentration of power—where investigation, prosecution, and final adjudication are all closely tied to the same judicial branch—creates an appearance, and sometimes a reality, of insularity. Even when the system functions properly, it can feel closed to those on the receiving end. When it fails, the consequences are devastating: careers ended, reputations destroyed, and livelihoods lost.

There is also a structural tension that deserves attention. Lawyers who defend respondents in disciplinary proceedings operate under the same licensing authority that governs the system itself. While most act with integrity, the perception of constrained advocacy—fair or not—undermines confidence in outcomes.

These are not fringe concerns. Legal scholars, practitioners, and policymakers have long debated how to balance professional regulation with due process protections. The question is not whether attorney discipline is necessary—it clearly is—but whether the current model provides sufficient safeguards against error.

Reform is both possible and necessary.

One proposal is simple and practical: require a brief, non-binding mediation before a formal ethics complaint proceeds. This “pre-complaint mediation” would give both the lawyer and the client an opportunity to clarify facts, resolve misunderstandings, and potentially avoid unnecessary escalation. It would also reduce costs for both the system and the public.

More broadly, states should consider:

• Increasing transparency in disciplinary proceedings

• Strengthening separation between investigative and adjudicative functions

• Providing clearer procedural protections for respondents

• Expanding avenues for independent review

None of these reforms would weaken the system. On the contrary, they would strengthen it by enhancing legitimacy and public trust.

Attorney discipline exists to protect the public. But protection requires not only enforcement—it requires fairness. A system that disciplines without sufficient safeguards risks losing the very credibility it depends on.

The legal profession, like any other, must be accountable. But accountability must run both ways.

If we believe in justice, we must ensure it applies everywhere—even, and especially, within our own institutions.